Trespass

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Trespass
Sophia Lynch
Flashcards by Sophia Lynch, updated more than 1 year ago
Sophia Lynch
Created by Sophia Lynch over 1 year ago
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Question Answer
1 Has there been... Has there been a trespass?
1 a Matchitt Matchitt - Trespass = "direct interference" with land where the plaintiff must have "possession".
1.1 Has there been ... Has there been "direct interference"?
1.1 a accidental? Must be a voluntary interference, cannot be accidental.
1.1 b smell Must be a physical act (cannot be smell).
1.1 c loss There doesn't have to be a damage or a loss.
1.2 Do they have... Do they have possession?
1.2 a Test Is there exclusive possession? Do lease v license test in Fatac.
1.2 b extend Does ownership extend to that area?
1.2 b (1) Star Energy Star Energy: 1. Possession if own land. 2. You own the land below but to a certain point. 3. A well would constitute.
1.2 b (2) Bernstein Bernstein: It's difficult to exclude people from airspace.
Why are neither of the previous cases binding? These cases are starting points but cannot be precedent due to varying circumstances.
1.2 b (3) De Richaumont De Richaumont: 1. Property rights are absolute. 2. PLA s319 is broad. 3. Court can allow you into neighbouring land for anything "necessary or desirable".
Why do you do this test if they are the owner? Usually owner has possession but this is not always the case.
1.3 What if.... What if they don't have possession?
1.3 a Do they have the right to ... Do they have the right too... 1. Action for recovery. 2. Trespass by relation. 3. Trespass to the reversion.
1.3 a (1) Star Energy Star Energy - Damage to reversion = those who will get the land can sue for the damage caused to their reversionary interest.
1.3 b trespass & license? It is unclear in NZ whether you can sue in trespass if you have a license.
1.3 b (1) Sealink Sealink: 1. They only have contractual rights. 2. Allowing them to sue in trespass imposes liability on a non-existent third party.
1.3 b (2) Lockwood Lockwood: 1. Licensee cannot sue for trespass but their license may impose liability/loss on owner. 2. Mortgagees can sue in trespass.
1.3 b (3) Georgski Georgski: Licensees don't have possession as the owner can withdraw their access at any time.
1.3 b (4) Manchester Manchester: 1. UK case so only use if similar case. 2. Says that licenses that come with occupation should be able to bring a trespass claim if sufficient interest.
1.3 b (5) Cousins v Wilson Cousins v Wilson You cannot sue someone if they have equitable interest but aren't in possession. (Purchaser in-between).
2 What _____ do they have? What remedies do they have?
2 a Damages Damages: Cost of reinstatement and/or loss in value.
2 b Recovery Action for Recovery of Land: 1. If you had right to immediate possession when action began and you have acquired possession by the time you sue. 2. Success of application in NZ is uncertain.
2 c Relation Trespass by Relation: Not in possession at the time of the trespass but have the right to immediate possession. When you do get possession you can sue through trespass by relation.
2 d Reversion Damage to Reversion: Those who will get the land can sue for the damage caused to their reversionary interest.
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